In the matter of Department of Transportation’s Case Number 5230

Hearing Date: July 12, 2001

Decision Issued: July 13, 2001

Revised Decision: August 28, 2001

The Director of the Department of Employment Dispute Resolution (EDR) has issued a compliance ruling directing the Hearing Officer to revise this decision to more specifically state findings regarding the discrimination issue.¹ Additions to the decision and typographical corrections are italicized.

Less than one week prior to the hearing, on July 6, 2001, an attorney called the hearing officer on behalf of the grievant stating that grievant had just retained him on that date. The attorney requested a postponement of the hearing so he could have time to prepare the case. The attorney for the agency was conferenced into the telephone conversation. After some discussion among the participants, the hearing officer denied the request for postponement for three reasons.

First grievant had initially filed his grievance on March 20, 2001. Following failure to settle the matter during three resolution steps, grievant requested the grievance be qualified for a hearing on May 8, 2001; he was notified of the qualification on May 29, 2001. Grievant knew from previous experience with the grievance process that all disciplinary matters are automatically qualified for a hearing.² Thus, at least as early as May 8, 2001, grievant knew that a hearing would be held soon. Grievant therefore had ample time to begin seeking legal representation even if he waited for notification of the qualification.

Second, the hearing officer was appointed on June 14, 2001; he conducted the prehearing conference on June 21, 2000. During that conference grievant and the agency’s attorney agreed to a hearing date of July 12, 2001. Grievant stated that he was giving consideration to retaining an attorney. The hearing officer advised grievant that, if he did retain an attorney, he should: 1) advise the attorney of the hearing date, 2) advise the attorney that the hearing would not be postponed and, 3) advise the attorney to immediately notify the hearing officer of his representation.

Third, grievant waited until July 6, 2001 to retain an attorney. This was more than two weeks after the prehearing conference and only four workdays prior to the docketed hearing date. If grievant had promptly retained an attorney following the prehearing conference, the attorney would have had ample time to prepare the case for a hearing. Therefore, the hearing officer concluded that the grievant had not demonstrated just cause³ for a postponement of the hearing.

In his request for relief, grievant requested removal of the Written Notice, and punitive damages in the amount of $6,280,000.00. The grievant was advised during both the prehearing conference and the hearing that hearing officers do not have authority to award monetary damages in grievance cases.⁴

Grievant

Facility Director

Attorney for Agency

Seven witnesses for Agency

Was the grievant’s conduct on February 8, 2001 subject to disciplinary action under the Commonwealth of Virginia Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group II Written Notice issued on February 21, 2001 for failure to comply with the sexual harassment policy by making a lewd comment to two of his female employees. Following failure by the parties to resolve the grievance at the third resolution step, the agency head qualified the matter for a hearing.

The Virginia Department of Transportation has employed the grievant for eight years as a bridge-tunnel patroller supervisor (BTPS). Previously, the grievant had retired from a career in the U.S. Army. On his two most recent annual performance evaluations, the overall rating was "exceeds expectations."

Grievant has received training about preventing sexual harassment in 1994, 1995 and most recently, on February 22, 2000.⁵ Included in that training was an explanation of the Commonwealth’s policy on sexual harassment. The policy utilizes the definition of sexual harassment published by the U.S. Equal Employment Opportunity Commission and states, in pertinent part:

On February 8, 2001 at about 6:15 a.m., grievant entered a room where two female subordinates were engaged in a discussion about taking sick leave. One asked grievant why employees were questioned about the nature of their illness when they call in sick. Grievant responded that he had called in sick one night and was questioned by a female as to the nature of his problem. He said that he had told her "My dick is swollen; do you want to suck it back down for me?"⁷ This statement was overheard by a third female employee who was in an area just outside the open door of the room.

The third employee found the grievant’s comment to be "disgusting and low-life" and it made her very uncomfortable. She was ending the night shift and about to leave work when this occurred. She went home and immediately called her supervisor (a traffic control supervisor) to report the incident. That supervisor reported the call to grievant’s supervisor who, in turn, met with his supervisor (the transportation operations manager) and that person’s manager (facility transportation manager). The three called the grievant into a meeting during the morning of February 8, 2001. When confronted by the transportation manager, grievant acknowledged that he had made the lewd comment and also acknowledged that it was inappropriate.

The three women who heard grievant’s lewd comment on February 8, 2001 have previously heard grievant make unwelcome sexually-oriented comments (for example, boasting that he was the size of a flashlight) to other female subordinates. Grievant has been counseled on three occasions regarding both verbal and physical sexual harassment of female employees.⁸ Following the 1995 counseling session, grievant was required to conduct a sexual harassment training session for his subordinates. It was hoped that this would provide added emphasis to the grievant regarding the seriousness of the offense for which he had been counseled.

On February 28, 2001, grievant prepared a typewritten statement stating:

Grievant asked the female employees who had heard his lewd comments on February 8, 2001 to sign the statement; they refused to do so.

Grievant did not present any evidence or testimony to show that employees of a different race or color had made similar comments but had not been disciplined. He did allege that the two female employees who filed the sexual harassment complaint against him had made sexually-oriented comments that he believed warranted disciplinary action. Specifically, grievant contended that the two female employees were discussing menstrual cycles and, details of their sexual relations with their husbands.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions and dismissals for unsatisfactory performance, the agency must present its evidence first and must show by a preponderance of the evidence that the action was warranted and appropriate under the circumstances.¹⁰

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training¹¹ promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V.B of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that Violation of Policy 2.15, Sexual Harassment, can be considered a Group I, Group II or Group III offense depending upon the nature of the violation.

The underlying facts in this case are undisputed. The grievant has admitted making the lewd statement that has been attributed to him. Three female witnesses heard the statement and were offended by it. Three supervisory/management personnel heard the grievant admit to the statement and acknowledge that it was inappropriate. Five of these people presented credible and persuasive testimony during the hearing.

Further, the language used by the grievant, when considered by a reasonable person, must be deemed offensive. Supervisors, however, have a special responsibility with regard to this issue. Supervisors are expected to enforce this policy and set the example for subordinates. It is therefore, an especially egregious situation when a supervisor verbally assaults subordinates with the language that grievant used on February 8, 2001. Therefore, the agency has shown, by a preponderance of the evidence, that the grievant violated the sexual harassment policy by creating an offensive work environment when he made lewd comments on February 8, 2001.

Grievant contends that the two female subordinates were discussing their menstrual cycles in connection with the sick leave issue; both females deny any such discussion. However, even if they were talking about menstruation, it is apparent, both from the grievant’s testimony and his signed statement regarding this incident, that he considers a comment by a female about her menstrual cycle to be an open invitation to make lewd and suggestive comments. In his written statement of February 15, 2001, grievant states, in pertinent part:

That the grievant considers a discussion of menstrual cycles to be "sexual aggressiveness and sexually explicit" demonstrates a total lack of understanding about the difference between the normal monthly cycle of females and illegal sexual acts such as oral sodomy. To equate these two very different things further shows a total disregard for the sensitivity of women. Even if one were one to conclude that the two females were discussing their menstrual cycles when grievant entered the room, such a discussion about a natural process cannot be considered a "sexually explicit conversation." Therefore, the grievant has not shown that the private discussion between these two females was even remotely similar to the lewd and vulgar comments made by grievant. Without a showing of similar conduct, the grievant’s argument of discrimination fails.

During the hearing, grievant alleged for the first time, that in addition to discussing their menstrual cycle, the females were discussing in graphic detail the positions they utilized when having sexual relations with their husbands. He raises this issue because some courts have held that employees who prompt sexual remarks by engaging in sexually explicit conversations themselves, cannot claim a hostile work environment.¹³However, grievant had never previously raised this contention during the investigation of this matter. The hearing officer finds this allegation less than credible in view of the fact that 1) grievant had never previously raised it as a defense and, 2) both females adamantly and credibly deny engaging in any sexually explicit conversations.

A review of the prior counseling documentation in the record makes it apparent that grievant has developed a pattern of talking to and about women in a manner that is lewd, degrading and totally unacceptable in the workplace. Grievant may have been able to talk in this manner during his military career and may be able to get away with it outside the workplace. However, the agency’s zero tolerance policy for such behavior clearly prohibits this kind of verbal sexual harassment from any employee. As noted above, a supervisor such as the grievant is held to an even higher standard because he is expected to set an example for all employees.

Grievant contends that the agency imposed the disciplinary action because everyone who had provided evidence in this case – a total of 12 people from the facility manager down to grievant’s subordinates – was lying and that the agency is retaliating against him. Grievant had filed and won a grievance three years ago; he believes the agency is now retaliating against him because he won the grievance. However, other than allegation, grievant proffered no witnesses, documentation or any other evidence that would support his charge of retaliation. Even if some such evidence existed, the preponderance of evidence in this case stands on its own and amply supports the disciplinary action taken.

As noted above, violation of the Sexual Harassment policy can be a Group I, II or III offense. Although there was substantial sentiment among management to give a Group III Written Notice, it was ultimately determined that a Group II Notice would be given. The Hearing Officer has evaluated the following factors in making the decision rendered below: 1) prior similar conduct by grievant over several years, 2) his extensive training about sexual harassment, 3) his apparent failure to comprehend that his behavior constitutes sexual harassment, 4) the lewd language used, 5) the zero tolerance policy for sexual harassment and, 6) the grievant’s obligation as a supervisor. Weighing all these factors, the level of discipline imposed by the agency was exceptionally lenient. There is no basis to reduce the level of discipline.

The decision of the agency is affirmed.

The Group II Written Notice issued on February 21, 2001 for violation of the sexual harassment policy is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section VII.B.2 of the Standards of Conduct.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq., Hearing Officer

¹ Compliance Ruling of Director, In the matter of Department of Transportation/ No. 2001-132, August 13, 2001.
² § 4.1(a), Department of Employment Dispute Resolution Grievance Procedure Manual, effective July 1, 2000.
³ § 5.1 of the Grievance Procedure Manual (Ibid.) provides that, "The hearing must be held and a written decision issued within 3 0 calendar days of the hearing officer's appointment. This time can be extended only upon a showing of just cause.
⁴ § 5.9(b)1. Department of Employment Dispute Resolution Grievance Procedure Manual.
⁵ Exhibit 8. Training transcript for grievant.
⁶ Exhibit 9. DHRM Policy No. 2.15, Sexual Harassment, effective September 16, 1993.
⁷ Exhibit 4. Statement dated February 9, 2001.
A second, but equally offensive, version of grievant's statement by another witness was to the effect of, "I told her I had a hard on and could not get it down. She said 'I'll be right over.'" See Exhibit 5. Memorandum to grievant from facility manager, April 16, 2001.
⁸ Grievant was counseled on August 15, 1994, May 12, 1995 and March 6, 1998. See Exhibit 5. Memorandum to grievant from facility manager, April 16, 2001. See also Exhibits 18-24 & 27-30.
⁹ Exhibit 1.
¹⁰ § 5.8, Grievance Procedure Manual, pp 14-15.
¹¹ Now known as the Department of Human Resources Management.
¹² Exhibit 2.
¹³ Exhibit 31.